International Mechanisms for Space Cooperation: Report of

the COPUOS LSC WorkSetsuko AOKI

Professor of Law,Keio University Law School

saoki@ls.keio.ac.jp

4 March 2018Session 2: Legal Strategies for Developing Moon Bases under International Cooperation

Overview

1 Introduction- Purpose of the Presentation 2 Summary of the 5-year agenda item “Review of International Mechanisms for Cooperation in the Peaceful Exploration and Use of Outer Space (“IMC”)”3 Categorization of the IMC4 Final Report of the IMC5 Conclusion

1 Introduction- Purpose of the Presentation

Space activities have flourished last 50 years through international cooperation.

To pursue a better international mechanism for space cooperation, “international cooperative mechanisms” has been studied as a multi-year agenda item in the Legal subcommittee of the UNCOPUOS from 2013 to 2017.

Report of the outcome of the LSC work published in April 2017 (A/AC.105/C.2/112)

3

2 Summary of the 5-year agenda item “Review of International Mechanisms for Cooperation in the Peaceful Exploration and Use of Outer Space (“IMC”)” (1)forum

Discussed in:Committee on the Peaceful Uses of Outer Space (COPUOS)A subsidiary organ of the UN General Assembly Permanent organ since 1959 84 States as of 2017Organization: (i) Scientific and Technical Subcommittee (STSC)

(ii) Legal Subcommittee (LSC)(iii) Main Committee

4

(2) Background of the IMCSpace Activities flourished through cooperation.

1996 UNGA Resolution Space Benefit Declarationclarifies the principles and conditions of space cooperation based on UN space treaties

- on an equitable and mutually acceptable basis;-contractual terms should be fair and reasonable (e.g., intellectual property

rights)-particular account should be taken of the needs of developing countries;- governmental and non-governmental; commercial and non- commercial;

global, multilateral, regional and bilateral.

(cont’d)

To further clarify the conditions29 March 2012 “IMC” proposed by the US, cosponsored by China, Ecuador, Japan, Peru and Saudi ArabiaMethodology: analyze various mechanisms to conduct international collaboration with a view to identifying common principles and procedures.

Reference for the future cooperative projects.

(3) Information provided to the COPUOS/LSC2013

Australia, Kazakhstan and Portugal (A/AC.105/C.2/102);

Austria, China and Germany (A/AC.105/C.2/2013/CRP.14);

United States (A/AC.105/C.2/2013/CRP.17); and

Intergovernmental Agreement on the International Space Station (ISS) (A/AC.105/C.2/2013/CRP.24)

2014 Algeria, Germany, Kenya (A/AC.105/C.2/105)Argentina (A/AC.105/C.2/105/Add,1)International Law Association (A/Ac.105/C.2/105/Add.2)Russia (A/AC.105/C.2/2014/CRP.23)Japan (A/AC.105/C.2/2014/CRP.24)Canada (A/AC.105/C.2/2014/CRP.25)Turkey (A/AC.105/C.2/2014/CRP.26)ESA (A/AC.105/C.2/2014/CRP.28)

7

(cont’d)

2015 Japan, Spain (A/AC.105/ C.2/107)

Austria (A/AC.105/C.2/2015/CRP.14)

2016Belgium, Poland, Thailand, Turkey & WMO (A/AC.105/C.2/109), Jpan and France (A/AC.105/C.2/2016/CRP.18)

Draft Report of the WG (A/AC.105/C.2/2016/CRP.14)

(cont’d)

2017Belgium, Poland, Thailand, Turkey & WMO (A/AC.105/C.2/111)Austria and Germany (A/AC.105/C.2/111/Add.1)International Institute of Space Law (IISL) (A/AC.105/C.2/2017/CRP.30)Draft Report of the WG (A/AC.105/C.2/2017/CRP.15)

3 Categorization of the IMC (1) common categorization based on the information provided to the LSC

1 legally-binding non-legally binding

2 universal (global), multilateral, bilateral

3 norm-creating, or disposal (contractual)

4 establishing international organization (IGO & NGO)

(2) Information from the USA and Canada: similarity found in the categorization

USA

A. Multilateral and Bilateral Legally Binding Agreements

B. Legally Non-Binding Principles and Technical Guidelines

C. Multilateral Coordination Mechanisms

D. International Fora

Canada

I. Multilateral and Bilateral Legally Binding Agreements

II. Non-Binding InstrumentsIII. Legally-Non-Binding Principles

and Technical GuidelinesIV. Multilateral Cooperation

Mechanisms V. International Fora

11

(3) Examples of the agreements USA used as IMC A. Multilateral and Bilateral Legally Binding Agreements* ISS Intergovernmental Agreement, Memoranda of Understanding, and subsidiary agreements (“Implementing Arrangements”)* Agreement on the Promotion, Provision and Use of Galileo and GPS Satellite-Based Navigation Systems and Related Applications * Bilateral Framework Agreements for Civil Space Cooperation (with Argentina, Brazil, Canada, France, India, Israel, Japan, Norway, Russia, Sweden, Ukraine, etc.)B. Legally Non-Binding Principles and Technical Guidelines* UN Principles; C. Multilateral Coordination Mechanisms* The Committee on Earth Observation Satellites (CEOS);* International Charter on Space and Major Disasters * International Space Exploration Coordination Group (ISECG)D. International Fora* International Astronautical Federation (IAF);

12

(4) Categorization of IMC by the European Space Agency (ESA) Three types of cooperation mechanisms1 ESA as a mechanism of international cooperation

-between member states of the ESA 2 ESA as an actor of international cooperation

- ESA cooperating with non-member States- ESA cooperating with international organizations

13

(cont’d)

Among ESA- The ESA Convention ESAInternational legal personality with treaty-making power - The Organs of ESA: the Council; the Director General* Mandatory activities and optional activities as central element of the cooperation mechanism

Several forms of legal instruments used by ESA

a) Cooperation agreements;b) Other international agreements;c) Implementing arrangements (usually under a high-level agreement)d) Memoranda of Understanding (with legal obligations)e) Exchange of Letters (with legal obligations)

14

4 Final Report of the IMC (A/AC.105/C.2/112, 13 April 2017)

(1) overview I Summary of the work conducted by the WG under its multi-year work planII Basic Framework for international cooperationIII Areas of cooperationIV Actors and forums of cooperationV Modes of international cooperationVI Regional variation in cooperation mechanismsVII Bilateral cooperation mechanismsVIII Multilateral cooperation mechanismsIX Conclusions

(2) only States and int’l Organizations to both States and Private entities

Areas of cooperation

-from basic science to commercial use to even the areas of security (transparency and confidence-building measures (TCBM))

Actors and forums of cooperation

- UN both a forum and actor - States- various types of organizations- companies, - private universities and research

laboratories

(3) Powers of regional cooperation

Governmental space organizations:

European Space Agency (ESA); Asia-Pacific Space Cooperation Organization (APSCO)

Governmental organizations which could involve space affairs-EU-ASEAN

Regional Forums-Asia-Pacific Regional Space Agency Forum (APRSAF); -African Leadership Conference on Space Science and Technology for Sustainable Development -Space Conference of Americas

Contents of cooperation counts

(4) Mechanisms favored by States: bilateralCombination of FA and IA (i)

Framework Agreements legally-binding (=treaty)- government-to-government or space agency to space-agency - basic legal principles in bilateral space cooperation in general- adopted even without an immediate specific project.

Implementing Arrangements/Agreements (IA) legally non-binding- space agency to space agency or between other specific governmental

agencies- mission description and allocation of the responsibilities of each party + basic legal principles

18

(cont’d) FA and IA

FA：legally binding Basic legal rules applicable all future cooperative missions

2 detailed contents of a specific day-to-day management

1 Copy and pasted the contents of the FA

19

1 + 2 = IAIA = non-legally binding

(ii) FA with the US government-to-government Argentina Canada France Norway Russia Sweden Ukraine

Year of the signature (incl. that of the extending the agreement)

2011 2010 2007 2006 2007 2015 2008

Purpose ○ ○ × × × × ○

Definitions ○ ○ × × × × ○

Scope of cooperation ○ ○ ○ ○ ○ ○ ○

Implementing Arrangements ○ ○ ○ ○ ○ ○ ○

Funding/financial arrangements ○ ○ ○ ○ ○ ○ ○

Customs duties and taxes ○ ○ One Article

One Article

One Article

One Article

○

Entry and exit of personnel ○ ○ ○

overflight ○ ○ ○

Intellectual property rights ○ ○ ○ ○ ○ ○ ○

20

21

(cont’d) Argentina Canada France Norway Russia Sweden Ukraine

Transfer of goods and technical data ○ ○ ○ ○ ○ ○ ○

Cross-waiver of liability ○ ○ ○ Allocation of risks ○

○ Allocation of risks ○

○

Publication of public information and results

○ ○ ○ × ○ × ○

Registration of space objects ○ ○ ○ × ○ × ○

consultations One ○ One ○ One ○ One

Dispute settlement Article ○ Article × Article × Article

Existing rights and obligations (relationship to other agreements)

○ ○ ○ ○ ○ ○ ○

List of implementing arrangements/Annexes

× ○ × ○ × × ×

Entry into force and duration 10 years 10 10 5 (10) ○ 10 ○

Amendments ○ ○ ○ ○ × ○ ○

Termination ○ ○ ○ ○ ○ ○ ○

(iii) FA with NASA space agency-to-space agency

Brazil Germany India Israel

Signed (incl. extending the agreement) 2010 2010 2007 2006

counterpart AEB DLR ISRO ISA

purpose ○ ○ ○ ○

Definitions × ○ ○ ○

Scope of cooperation 2 articles ○ ○ ○

Implementing Arrangements ○ ○ ○ ○

Funding/financial arrangements ○ ○ ○ ○

Customs duties and taxes One ○ ○ ○

Entry and exit of personnel Article ○ ○ ○

overflight ○ ○ ○

Intellectual property rights ○ Annex ○ ○ ○

22

(cont’d)

Brazil Germany India Israel

Cross-waiver of liability × ○ ○ ○

Registration of space objects × ○ ○ ○

Transfer of goods and technical data × ○ ○ ○

Publication of results and public information

× ○ ○ ○

Consultation and dispute settlement ○ ○ ○ ○

Continuing obligations ○ × ○ ○

Amendment ○ ○ ○ ○

Entry into force and duration 10 10 10 10

Termination ○ ○ ○ ○

23

(iv) FA with Russia government-to-government

Australia Brazil Germany Mexico ROK Spain

Signed (incl. extending the agreement)

2007 2010 2001 1996 2004 2006

Purpose ○ × ○ ○ ○ ○

Definition × × × × × ○

Applicable law ○ ○ ○ ○ ○ ○

Cooperative organizations ○ ○ ○ ○ ○ ○

Areas of cooperation ○ ○ One ○ One ○

Forms of cooperation ○ ○ Article ○ Article ○

Complementary agreements × ○ × ○ × ×

Working Groups × ○ × × × ×

Financing ○ ○ ○ × ○ ○

Intellectual property ○ ○ ○ × ○ ○

24

25

(cont’d) Australia Brazil Germany Mexico ROK Spain

Exchange of information and hardware

○ ○ One × ○ ○

Protection of property ○ ○ Article × ○ ○

Liability ○ ○ ○ × ○ ○

Customs regulation ○ × ○ × ○ ○

Export control ○ × ○ × × ○

Assistance to the activities of personnel

○ ○ ○ × ○ ○

Economic and industrial types (forms) of activity

○ ○ ○ × ○ ○

Settlement of disputes ○ ○ ○ × ○ ○

Final provisions: duration 10 years 10 5 10 10 10

Attachment (intellectualproperty (IP); IP and confidential information

○ Annex IP

○ × ○ ○

(v) FA with France (cont’d) Algeria Brazil China Mexico

2006 1997 1997 2014

Purpose ○ ○ ○

Applicable law; relationship with other agreements ○ ○ ○

Area of cooperation ○ ○ ○

Forms of cooperation ○ ○ ○

Designation of the space agency as a competent body ○ ○ ○

Joint Committee (JC) (set broad directions for cooperation) to be established

○ × ×

Implementing Agreements to be made by the JC ○ ○ ○

Intellectual Property (IP) detailed rules in the Annex ○ ○ ○

Transfer of Information and data ○ ○ ○

Financial arrangements ○ ○ indirect

Entry and exit of personnel; customs, duties and taxes ○ ○ ○

Liability (cross-waiver of liability) ○ × ×

26

？

27

(cont’d) Algeria Brazil China Mexico

Promotion of the Industrial and commercial cooperation ○ ○ ○

Cooperation on legal questions of mutual interest × × ○

Settlement of disputes (negotiation, arbitration procedures) negotiation Negotiation,etc.

○

Amendment ○ ○ ○

Duration 10 10 5

Annex (Intellectual Property) ○ ○ ○

?

(vi) IA as MOU for cooperation in the use of USGS Landsat sensing satellite data

28

Argentina Gabon ESA Japan Norway SaudiArabia

SouthAfrica

Thailand

2013 2013 2012 2013 2013 2013 2013 2013

Purpose and scope of cooperation ○ ○ ○ ○ ○ ○ ○ ○

Existence of the Framework agreement ○ × × × ○ × × ×

Responsibilities of the parties (NASA 6; each space agency 14)

International mission cooperation

Science and applications development

User service arrangements

Financial arrangements and legal authorization

Duties, fees, and taxes

Entry and exist of personnel

model provision identical provisions from the FA

Model provisions commonly used in the IA

Borrowed provisions from the FA

29

Argentina Gabon ESA Japan Norway Saudi Arabia SouthAfrica

Thailand

Laws, warranties, rights, and liability

Exchange of technical information

Consultations and settlement of disputes

Entry into force, duration, and termination

Annex I: definition of terms

Annex II: Landsat 8 Annual Access fee agreement

model provision Same provisions from the FA

Model provisions commonly used in the IA

IA≒ description of the mission concerned+ standardized provisions of the IA + borrowed provisions from the FA

(5) A Multilateral Mechanism selected by States(i) ISS three-tier mechanism

A number of implementing arrangements concluded between space agencies: made when new rules are needed

MOU between NASA and corresponding space agencies (government of Japan): day-to-day mission responsibilities and management

ISS Intergovernmental Agreement (ISS/IGA) basis for this specific project

30

(ii) 1998 ISS/IGA1 objects and scope2 international rights and obligations

3 definitions 4 cooperating agencies5 Registration; jurisdiction and control

6 ownership of elements and equipment7 management8 detailed design and development

9 utilization10 operation11 crew

12 transportation13 communications14 evolution

15 funding 16 cross-waiver of liability17 liability convention18 customs and immigration19 exchange of data and goods20 treatment of data and goods in transition21 intellectual property22 criminal jurisdiction23 consultations24 space station cooperation review25 entry into force 26 operative effect as between certain parties 27 amendments; 28 withdrawal

31

Red lettersFound in the bilateral FA

Blue letters Often found in the

bilateral IA

(iii) Characteristics of the ISS/IGA

Formula ISS/IGA ≒ +

32

standard clauses of FA (liability, IP, movement of data,

goods and personnel, consultation and final

provisions)

elements found in the standard IA of big projects (jurisdiction, registration, mission description, management, etc.)

Contents of such elements would differ depending on the projects

This formula could be used for the next multilateral bit exploration

project, e.g., the one to be generated from the ISEF consideration

5 Conclusion: how to make international cooperative framework for establishing moon bases Big project lessons from the ISS project

- treaty-based cooperation - multi-tier legal frameworks needed prototype of FA and IA would be

a reference to consider moon bases project(s)For the detail: See, A/AC.105/C.2/112 (13 April 2017)